Superior Court Judge Kathleen Mackay on Saturday dismissed a lawsuit filed by 2014 gubernatorial candidate Kenneth Mapp and resident Janelle Sarauw, ensuring that voters will not scan their own ballots on the Nov. 4 general election.

Mackay dismissed the case with prejudice, barring Mapp and Sarauw from filing another suit on the same claim.

“The court cannot mandate the Board of Elections to use the DS200 machine as it is intended, that is to allow each voter to scan his or her own ballot, as to do so would cause errors in the tabulation,” Mackay said in her ruling.

The “error in tabulation” Mackay referred to occurs in cases where voters selected on their paper ballots a party symbol to indicate straight-ticket voting, then also selected candidates outside that party. The DS200 tabulating machines overrode the party symbol entirely in the sections of the ballot where candidates outside of the party symbol are selected, giving the vote to the non-party candidates.

The Virgin Islands Code does not provide for counting ballots in that fashion, Mackay said. The code also states that in such cases, those portions of the ballot are considered spoiled and would be illegal to count, she said.

Mapp and Sarauw had filed for declaratory relief, preliminary injunction and permanent restraining order against Elections Supervisor Caroline Fawkes, Joint Election Board Chairwoman Alecia Wells, St. Thomas-St. John District Board Chairman Arturo Watlington and St. Croix District Board Chairman Adelbert Bryan.

“It adversely affects me as a voter,” Mapp said of the board’s decision to prevent voters from using the DS200 tabulating machines to scan their ballots.

On Oct. 27, the joint board decided not to allow all voters to scan their own ballots because of the programming that caused party symbols to be overridden when a voter also selects a candidate outside of that party.

Instead, voters will drop their completed ballots into the sealed storage compartment of the DS200 machines. The ballots without the symbol votes will be fed by election officials into the DS200s, and the symbol-vote ballots will be hand-counted by board members.

Determining Voter Intent

According to Watlington, in race categories where the voter over-voted by selecting a non-party candidate in addition to the party symbol, that section of the ballot would be considered spoiled. The rest of the ballot would be counted.

“That’s the most fair and accurate way of doing it,” Watlington said.

Plaintiff’s counsel Terri Griffith argued, however, that in such cases, “The DS200 considers the non-party vote the voter intent.” The fact that a non-party candidate was selected clearly demonstrates that the voter changed his mind about voting for a straight ticket.

Defense counsel Tameka Archer countered that this was a preference made by the machine, and does not necessarily indicate voter intent.

“It’s impossible to know the will of the voter,” Archer said. “The only way to determine is to ask the voter. Unfortunately, that’s not the way elections are structured.”

By kicking out candidates under the party symbol and giving the vote to the non-party candidates without knowing voter intent, the machine is doing “what the law cannot and does not permit,” Archer said.

The Right to Correct Ballots

According to Griffith, the plaintiffs, as voters, are done irreparable harm through the potential loss of votes if they are not allowed to scan their own ballots.

“I will have no way of knowing even at the end of the day that I had made an error,” Mapp said. “That feedback that the machine provides is no longer available to me because that ballot is to be fed long after I have left the polls.”

Mapp added that he is left with making an assumption about his ballot, which is left to the “subjective review” of the board members.

“You don’t have a right to get three or four bites of the apple,” Watlington said, adding residents have a right to vote, not the right to correct spoiled ballots.

Mackay later stated the V.I. Code does not mandate that voters are given the right to correct a ballot before casting, or that they be given notice that it is spoiled or an error has been made.

Public Trust

The board’s decision also led to general election candidates Wilma Marsh-Monsanto, Harriet Mercer and Diane Magras to file their own lawsuit on Friday against the joint board, the district boards, individual board members and Fawkes.

Among their complaints was that the defendants “continued to encourage unsuspecting voters to take advantage of early voting” fully knowing that the machines were “not functioning properly” and would not be available.

Mackay acknowledged that while the use of the machines would foster the people’s confidence in the elections, it would be unlawful for the court to mandate the joint board to allow voters the use of the DS200 tabulators.

There is no doubt the DS200 “will correctly tabulate most votes,” but in some instances, she said, “it is programmed to count certain votes in a way contrary to Virgin Islands law.”

Griffith said the problem with voting for a party symbols and non-party candidates was “a red herring.”

“The real issue is where are we going to count the votes and who is going to count them,” she said.

Mackay also acknowledged that the law has not kept pace with the change in the machines being used by the board of elections. Sarauw said this calls for a revision of the V.I. Code.

“The current voting leaves too much room for corruption, election rigging and fraud,” she said.